In this thought-provoking piece from The New York Times, law professor Cass R. Sunstein scrutinizes President Trump’s attempt to reshape the balance of power by asserting unprecedented control over independent regulatory agencies. The article outlines how Trump's embrace of the unitary executive theory—based on the idea that executive power is solely vested in the president—could fundamentally reshape the U.S. administrative state by allowing him to direct or even dictate the policies of agencies like the Federal Trade Commission (FTC), the National Labor Relations Board (NLRB), and the Federal Communications Commission (FCC). Sunstein warns that such a power grab, which is "a modern creation that threatens to change, and in important ways to undermine, the operations of the national government," risks concentrating too much authority in the executive branch. This shift, if ultimately upheld by the courts, might erode longstanding checks and balances, potentially allowing presidential influence over critical areas like monetary policy and communications, and weakening the foundational separation of powers honored since the nation's founding.

Key Points:

• Unitary Executive Theory: Trump’s strategy is based on the belief that “the executive power shall be vested in a president,” giving him the authority to control high-level and even some lower-level officials in federal agencies.
• Impact on Independent Agencies: By asserting control over agencies like the FTC, NLRB, and FCC, Trump could interfere with their ability to operate independently, risking policies being driven by political motives.
• Historic Precedents: The theory finds historical roots in the early decisions of 1789 and debates at the Constitutional Convention, though the modern interpretation is viewed as a radical departure from settled legal traditions.
• Legal and Constitutional Concerns: Critics argue that allowing the president to dictate regulatory outputs undermines the separation of powers, as seen in cases like Humphrey’s Executor v. United States and the more recent Seila Law v. CFPB.
• Potential Dangers: Concentrated power could lead to dangerous outcomes, such as manipulation of monetary policy or the impoundment of congressional funds, illustrating the risk of collapsing the balance between branches.
• Debate on Reforms: While some argue that increased oversight via the Office of Information and Regulatory Affairs (OIRA) might improve agency regulations, it also raises concerns about executive overreach and the stifling of agency independence.

This discussion sets the stage for a deeper inquiry into the constitutional limits of presidential power and the enduring legacy of our founding principles.
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